GENERAL TERMS AND CONDITIONS OF BUSINESS, SALE AND DELIVERY (TERMS AND CONDITIONS)
The following terms and conditions apply to the company NOMOQ AG with registered office in Zürich in the Canton of Zürich, Switzerland. All orders and all deliveries by NOMOQ AG are made exclusively on the basis of the following terms and conditions.
Deviating terms and conditions of the buyer (hereinafter also customer) shall not become part of the contract, even if NOMOQ AG does not expressly object to them. Special agreements require the written approval of NOMOQ AG in order to be valid.
In no event and under no circumstances shall NOMOQ AG be liable for any direct, indirect or consequential damages arising out of any failure of the buyer to comply with the provisions, instructions or obligations set forth below.
1. QUOTATIONS & PRICES
Offers are subject to change with regard to price, quantity, delivery possibility and delivery period in accordance with changed general conditions, insofar as these cannot be directly influenced by NOMOQ AG. Accordingly, we expressly reserve the right to make changes; in the case of prices, this applies in particular to higher production costs (such as wages, material, raw materials, freight, energy, etc.) as well as public charges (taxes, customs,
fees, etc.). Fixed prices always require a special agreement. Any recommendations on the use, storage, transport and/or application of goods, including consumption, are made to the best of our knowledge and belief, but are non-binding, without any claim to completeness or correctness and to the exclusion of any warranty and liability.
The price stated in the order is binding. Unless otherwise agreed in writing, the price includes the provision of the goods for collection ex works (EXW). NOMOQ may arrange shipment of the goods on behalf of the customer at the customer's expense and risk. The statutory value added tax is not included in the price. Payment shall be made in advance or within 14 days at the latest, calculated from delivery and invoicing.
The quantity-dependent standard price of NOMOQ is for printing, including the can for a continuous production order of a design but excluding the can lid. Any legal duties such as the VRB (Vorgezogener Recycling Beitrag - advance recycling fee), pallet deposit or other possibly legally mandatory deposit costs (DPG, recycling fees) are not included in the offer, are not part of the quantity-based standard price and will be charged to the customer
accordingly. Transport material such as pallet costs are also not included in the standard price and will be charged accordingly.
2. DELIVERY & WARRANTY
Unless otherwise agreed in writing, complaints about missing goods or goods that are externally recognisable as defective must be made immediately upon delivery or collection and in the presence of the delivering driver or handing over warehouse/disposition manager, and must be noted in writing with details on the delivery note enclosed with the delivery or collection. The goods subject to the complaint shall be kept in stock until inspection by NOMOQ, unless the parties agree otherwise. Written complaints must be accompanied by relevant documents and photos of the complaint so that NOMOQ can start an investigation into the cause. This also applies to goods delivered with missing / wrong / broken packaging. Minor printing or packaging errors or torn or soiled outer packaging / foils / etc., which do not or not significantly restrict the condition or usability of the product, are
expressly not considered as defects. The buyer is obliged to inspect the goods for defects that are not externally visible within 7 days. Defects that are not externally visible must be reported within 7 working days after delivery or collection to the attention of NOMOQ AG at hello@nomoq.com, otherwise the work shall also be deemed approved with regard to these defects. NOMOQ AG excludes any liability for defects that are not reported / reported too late. In any case, the assertion of warranty claims is strictly limited to 1 year.
3. PAYMENT
The agreed or offered payment terms and modalities shall apply. The withholding of payments due to counterclaims made by the buyer or customer, as well as offsetting against counterclaims not recognized by NOMOQ AG or established by a court of law, is excluded. On the other hand, NOMOQ AG is entitled to suspend its own services still to be rendered in the event of default in payment, without releasing the buyer or customer from its payment obligation. In the event of extrajudicial or judicial collection of our claims, the buyer is obliged to reimburse the associated and incurred reminder, collection and court costs and other expenses.
4. HANDLING, STORAGE, CARE
The buyer of goods must handle them with the utmost care and protection from the time of acceptance, regardless of whether he has been instructed accordingly by NOMOQ AG or not. Accordingly, NOMOQ AG and the buyer agree, and hereby confirm, that it is the buyer's own responsibility to inform and take care of the proper handling and appropriate measures of care in the handling of the goods purchased from NOMOQ AG, as
NOMOQ AG is not aware of the buyer's respective intentions. This includes appropriate transport or storage measures in full as long as NOMOQ AG is not responsible for this due to the agreed Incoterm provisions. Failure on the part of NOMOQ AG to provide information or instructions under this section to the buyer and any damages arising therefrom shall not entitle the buyer to any claims against NOMOQ AG at any time or under any circumstances. In particular:
● Cans must not freeze at any time, especially during transport (e.g. in winter);
● Cans must not be dropped or thrown, as this can lead to hairline cracks in the aluminum or the coatings.
● Open packaging with perishable contents must be separated immediately (!) from the other packaging
and disposed of as quickly as possible for hygienic reasons;
● Pallets must always be suitably secured.
NOMOQ is not responsible for any damage resulting from improper handling of the goods, including but not limited to the following: Storage, filling, sealing or thermal treatment of the goods after packaging.
NOMOQ is not responsible for any damage resulting from the interaction between the product and the cans, NOMOQ's warranty or any of its certificates, and improper filling, storage, sealing or heat treatment after packaging of a product.
5. TRANSPORT AND TRANSFER OF RISK
The provisions of Incoterm shall apply, the relevant transitions being named and defined by reference to the relevant applicable abbreviated 3-digit Incoterm provisions in the quotation, order, delivery note and/or invoice. In the case of EXW or FCA destination, the buyer is expressly liable for lashing, securing, cushioning and securing the goods on the corresponding means of transport and is also solely responsible for any damage resulting from such measures; furthermore, the buyer is solely liable for suitable means and conditions of transport, considering the special requirements of the product. The risk shall pass to the customer when the goods are made available ex ramp. The customer shall be fully responsible, at its own expense, for insuring the goods against damage during the shipping period and shall be able to provide proof of such insurance upon NOMOQ's request.
Upon acceptance of the delivered cans, the risk shall pass directly to the buyer of the cans. This means, among other things, that NOMOQ accepts no liability for filled finished goods such as burst cans or cans with hairline cracks (incl. associated cases), which must be immediately separated or segregated from other cans in order to avoid secondary corrosion. Furthermore, NOMOQ is not liable for the further transport of the finished beverages.
NOMOQ shall not be liable for any indirect damage, losses, loss of revenue or loss of sales. NOMOQ's liability shall in no case exceed the value of the affected and requested delivery.
6. RESTRICTIONS ON USE & RIGHT OF REFUSAL
NOMOQ is not liable for the can designs printed on behalf of the customer. Customers shall be completely independently liable for the image rights, fonts and any other intellectual property used on the designs. NOMOQ is further not liable for the declaration of ingredients and the nutritional value table printed on the can. It is the responsibility of the customer as the distributor of the finished beverage to ensure that the declaration complies with the relevant regulations in the markets. NOMOQ has the right to disclose customers' identity to any third party claiming that any material uploaded by the customer to NOMOQ’s site constitutes a violation of their intellectual property rights.
Whenever the customer makes use of a feature that allows customer to upload material to NOMOQ’s site (“Customer Material”), customer must comply with the content standards set out below in sections A and B (“Content Standards”). Customer shall hold harmless and indemnify NOMOQ from any and all liability, loss, damages, costs, or expenses which are sustained, incurred, or required arising out of a breach of the Content Standards by the customer – this applies irrespective of NOMOQ making use of its right of refusal mentioned in this section or not.
A. Customer Material must:
a. be accurate (where it states facts);
b. be genuinely held (where it states opinions); and
c. comply with the law applicable in the EU and in any country from which it is uploaded.
B. Customer Material must not:
a. be defamatory of any person;
b. be obscene, offensive, hateful or inflammatory;
c. promote sexually explicit material;
d. promote violence;
e. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
f. infringe any intellectual property rights of any third party;
g. be likely to deceive any person;
h. breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
i. promote any illegal activity;
j. be in contempt of court;
k. be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety;
l. be likely to harass, upset, embarrass, alarm or annoy any other person;
m. impersonate any person, or misrepresent the identity or affiliation with any person;
n. advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse; or
o. contain a statement which customer knows or believes, or has reasonable grounds for
believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducements to the commission, preparation or instigation of acts of terrorism.
By requesting a sample and/or placing an order on NOMOQ’s website, the customer represents and warrants that it has all the necessary permissions, rights and authority to place the order and to authorize NOMOQ to produce the ordered goods. The customer grants NOMOQ the right to copy, modify, distribute, use, create derivative works of and vectorize any content customer has uploaded for the purpose of fulfilling customer’s order.
In addition to complying with the Content Standards, customer agrees that all of the Customer Material uploaded to NOMOQ’s site will be done at customers own risk. Customer must retain a copy of the Customer Material that is uploaded. NOMOQ expressly excludes all liability for any uploaded Customer Material which is lost or damaged during or after the uploading process.
Failure to follow NOMOQ’s online preparatory instructions for uploading Customer Material may result in poor quality of the ordered goods. Please review these instructions carefully under website (www.nomoq.com).
NOMOQ accepts no responsibility for poor quality of ordered goods as a result of customer’s failure to follow the preparatory instructions for uploading Customer Material.
NOMOQ may amend its Privacy Policy from time to time concerning the storage of Customer Material and the amount of Customer Material that may be uploaded to NOMOQ’s site. Customer is therefore advised to review NOMOQ’s Privacy Policy regularly.
NOMOQ reserves the right, at its sole discretion, to refuse to accept any Customer Material or to refuse to process or fulfil any order at any time and for any reason. Customer will receive a full refund of any sums already paid for an order NOMOQ refuses to fulfil.
NOMOQ further reserves the right, at its sole discretion, to temporarily or permanently suspend and/or terminate its services to customer at any time and for any reason, including, without limitation, customer’s violation of these Terms and Conditions. Customer agrees that NOMOQ shall have no liability of any kind to customer or to any third party arising from such refusal, suspension or termination
7. RETENTION OF TITLE & INTELLECTUAL PROPERTY
NOMOQ AG retains ownership of the delivered goods including packaging until the purchase price has been paid in full. In case of processing, combining or mixing of delivered goods, the seller becomes owner or at least co-owner in proportion to the delivery value of his reserved goods. Until all claims of NOMOQ AG have been settled, the buyer hereby assigns to NOMOQ AG all claims, including all ancillary rights, to which the buyer is or will be entitled from the sale of goods or for any other legal reason with regard to the goods to which NOMOQ AG retains title, even after processing, combining or mixing. Unless otherwise agreed, NOMOQ AG shall in any case and at all times remain the owner of the works produced by it within the scope of projects or product developments, namely sketches, layouts, graphics, plans, packaging, etc. NOMOQ AG shall not be liable for any damages resulting from the use of such works.
8. FORCE MAJEURE
In the event of force majeure, NOMOQ AG shall be released from its obligations, likewise if circumstances arise at NOMOQ AG or its suppliers and/or production partners which restrict or render impossible the manufacture and delivery of the goods. Without claiming to be exhaustive, force majeure includes the following events or conditions: strikes, war or consequences of war, unforeseeable events, fire, floods, storms, lightning strikes,
earthquakes, embargoes, municipal or government restrictions, inability to produce due to lack of raw materials because NOMOQ's suppliers rely on force majeure, inability to produce due to interruption of supply chains, machine, power, computer and telecommunications malfunctions, criminal activity, pandemics and other similar cases.
The party affected by force majeure shall immediately give written notice to the other party. If the Force Majeure event continues for more than one hundred and eighty (180) days, the party not affected by the Force Majeure shall have the option to withdraw from its obligations, with the exception of the obligation to pay for deliveries made or orders placed, which shall be paid in any case.
9. JURISDICTION & APPLICABLE LAW
These terms and conditions shall be governed exclusively by Swiss law. The exclusive place of jurisdiction is the city of Zurich. The application of UN provisions on the law of sales or international contract law are excluded.
® NOMOQ is a registered trademark of NOMOQ AG.
Zurich, NOVEMBER 2022.
